November 26, 2008 7:48PM (UTC)

The opposition to Mr. Brennan had been largely confined to liberal blogs, and there was not an expectation he would face a particularly difficult confirmation process. Still, the episode shows that the C.I.A.’s secret detention program remains a particularly incendiary issue for the Democratic base, making it difficult for Mr. Obama to select someone for a top intelligence post who has played any role in the agency’s campaign against Al Qaeda since the Sept. 11 attacks.

Glenn should have noted the sly way that asshole Mazzetti slides from "the CIA's secret detention program remains a particularly incendiary issue for the Democratic base" -- because, of course, only those wacko lefties worry about war crimes -- to the completely bogus assertion that said concerns have made it "difficult for Mr. Obama to select someone . . . who has played any role in the agency’s campaign against Al Qaeda since 9/11" (emphasis mine).

So, according to the New Pravda (sometimes known as the New York Times) to criticize crimes against humanity is to oppose the entire campaign against the people responsible for 9/11. Dick Cheney couldn't have put it better.

Now THAT'S some sleazy journalism we can believe in.

Digby noted the same passage and made a similar point: that to object to someone like Brennan -- who advocated and defended the Bush administration's rendition and "enhanced interrogation tactics" -- is hardly the same as objecting to anyone who "played any role in the agency’s campaign against Al Qaeda." And Andrew Sullivan made a related point about an AP article by Pamela Hess which contains this wretched sentence: "Obama's advisers had grown increasingly concerned in recent days over Web logs that accused Brennan of condoning harsh interrogation tactics, including waterboarding, which critics call torture." As Sullivan notes: "no sane person with any knowledge of the subject disputes the fact that waterboarding is and always has been torture. So why cannot the AP tell the truth?"

All of this underscores a crucial fact: a major reason why the Bush administration was able to break numerous laws in general, and subject detainees to illegal torture specifically, is because the media immediately mimicked the Orwellian methods adopted by the administration to speak about and obfuscate these matters. Objective propositions that were never in dispute and cannot be reasonably disputed were denied by the Bush administration, and -- for that reason alone (one side says it's true) -- the media immediately depicted these objective facts as subject to reasonable dispute.

Hence: "war crimes" were transformed into "policy disputes" between hawkish defenders of the country and shrill, soft-on-terror liberals. "Torture" became "enhanced interrogation techniques which critics call torture." And, most of all, flagrant lawbreaking -- doing X when the law says: "X is a felony" -- became acting "pursuant to robust theories of executive power" or "expansive interpretations of statutes and treaties" or, at worst, "in circumvention of legal frameworks."

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All of that is what has created the warped Beltway consensus that Bush officials who broke the law, committed war crimes and other felonies, should be absolutely immunized from the consequences of their crimes. That's because when government officials commit "crimes," they're not actually crimes -- they're mere "policy disputes among people in good faith." Only "incendiary" liberals believe that government officials who break the law should be subject to accusations as shrill and extreme as: "they committed crimes."

Behold the excuses which former Bush DOJ lawyer and current Harvard Law Professor Jack Goldsmith offers up today in The Washington Post on behalf of his former colleagues, as he argues not only that Bush's torture regime shouldn't be criminally prosecuted, but also that no new investigations of any kind -- including by Congress or an Executive branch truth-finding Commission -- should be pursued:

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Yet another round of investigations during the Obama administration, even by a bipartisan commission, would exacerbate this problem. It would also bring little benefit. The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.

Walk into any criminal courtroom in the country where a convicted defendant is pleading for light or no punishment and that's exactly what you'll hear: "I've already been punished enough, Your Honor. My reputation has been ruined, my health is suffering, I lost my job. What more do you want to do to me?"

But -- when it comes to common criminals -- our political class rejects those pleas, turns a resolutely deaf ear to them. For those people, we continue to erect ever-harsher criminal sanctions, mandatory minimum sentencing schemes, and an increasingly merciless criminal justice system. As a result, we imprison more of our population than any other country on the planet. Even people who commit petty, harmless offenses -- corner drug dealing with other adults or even mere drug possession -- have the full weight of the criminal justice system smashing down upon them, thanks to our "tough-on-crime" political class. They go to prison, are separated from their families, are put into cages, permanently labeled "felons."

Yet the same political establishment that has created and continues to fuel this incomparably merciless justice system has made themselves exempt from the rule of law. When they flagrantly violate even the most consequential criminal prohibitions -- laws criminalizing torture, spying on American citizens, obstruction of justice -- it's only the shrill rabble (the "incendiary Democratic base") who would possibly believe that they should be held accountable and investigated, let alone prosecuted and imprisoned. All of the upstanding, responsible, Serious people understand that these aren't real "crimes." These are merely acts which "critics call illegal" -- or what Goldsmith calls "mistakes" or "act[ions] that seemed reasonable at the time but now seem inappropriate."

And besides, even if you want to get all technical about it and say that they "broke the law," everyone Serious knows that "criminal prosecutions" weren't created for high government officials. As Goldsmith so movingly points out, it's already bad enough that Good and Important People like John Yoo, David Addington, Alberto Gonzales, Dick Cheney and friends have suffered what Goldsmith describes as "severe criticism" and even "enormous reputational losses." Criticism and reputational damage! In the name of God, what more do you want to do to these people?

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As Goldsmith pleads, these are people who have been so severely punished already. They are banished to toil in shameful, humiliating labor conditions -- as, say, tenured Professor at Berkeley Law School or Chief of Staff to the Vice President of the United States, with unimaginably grim futures involving millions of dollars in fees for giving speeches and writing memoirs and living in retirement off Halliburton stock. What kind of monster would want to heap still more punishment on these noble, suffering souls, just because they committed some so-called "war crimes" and other felonies? Haven't they suffered enough? Shame on those who want to keep harassing them, wringing what Goldsmith calls "further retribution" by holding them accountable under the law.

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Goldsmith's principal point is that we will all suffer if further investigations are pursued against these high government officials, because government lawyers will "become excessively cautious in giving advice and will substitute predictions of political palatability for careful legal judgment." Actually, the reason we have criminal laws and punishment for violations is precisely because we want to deterlawbreaking and incentivize people to obey, not flout, the law. Government lawyers should be cautious, not reckless, in advising what can be done. In a country that lives under what we once adorably called "the rule of law," the solution -- if we want government agents to be more aggressive in their "counter-terrorism" behavior -- is to change the laws to allow that more aggressive action, not to create, as Goldsmith and so many others favor, a system of justice where Executive branch officials are literally free to break our laws with impunity.

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There are controversial policies that were pursued after 9/11 whose legality is debatable, and as is true for many borderline crimes, there is a reasonable argument to be made that those crimes need not be prosecuted (though they should be fully investigated and disclosed). But there are many other acts ordered at the highest levels of our Government which were clearly illegal, which unquestionably constitute war crimes and felonies.

The fact that the Government and the establishment media has changed our language to obscure those facts doesn't make that any less so. And there simply is no way to argue that the criminals who committed those crimes should be immunized from investigation and prosecution other than by affirming that we have -- and should have -- a two-tiered justice system where our highest government officials reside above, rather than subject to, the rule of law.

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UPDATE: 3 related items:

(1) I've written a piece for the ACLU on Obama's past positions concerning Guantanamo, executive power and the rule of law, and outline what the key issues and priorities should be for the Obama administration to restore America's standing and core political values.

(2) Over the last week, Spencer Ackerman had been offering some mild defenses of John Brennan, but did so without addressing what was, in my view, the strongest evidence against Brennan. I requested that Spencer re-visit his defense in light of that evidence and, to his credit, he has done so quite thoughtfully -- changing his mind on many (but not all) of the relevant issues, while concluding that Brennan's past statements should disqualify him from serving as CIA Director.

(3) Law Professor Jonathan Turley was on The Rachel Maddow Show last night to discuss the need for criminal investigations into Bush's interrogation and detention programs and, as usual when Turley is involved, it is highly worth watching.

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UPDATE II (Thurdsday): In light of the holiday, I'll note four related commentaries on this topic that are well worth reading; these are all highly recommended:

(1) Numerous emailers complained about a truly vapid and ill-informed discussion on NPR Wednesday morning -- between Tom Gjelten and Steve Inskeep -- regarding John Brennan's withdrawal and the objections to Brennan. Over at NPR Check, Mytwords details how fact-free and misleading NPR's discussion was. They devoted a whole segment to the controversy without having the slightest idea what they were talking about. As a result, they obfuscated and distorted the critical issues raised by Brennan's advocacy of some of the most abusive Bush "War on Terror" programs, and -- as NPR Check documents -- depicted those who objected to Brennan as being shrill left-wing hysterics, ranting over nothing.

(3)In The New York Times this morning, Roger Cohen examines the administration's reliance on Orwellian language to justify its patently illegal human rights abuses, and observes: "When governments veer onto the dark side, language always goes murky. Direct speech makes dirty deeds too clear." Cohen cites some genuinely ugly bureaucratic language used by Bush officials to distort what they're actually doing, but that same method has also been used, all too frequently, by the newspaper in which Cohen is writing.

(4)Digby dissects Jack Goldsmith's plea for immunity for his former Bush colleagues and notes -- correctly -- that Goldsmith's warning that we will all suffer from insufficiently aggressive intelligence actions if we hold Bush officials accountable for their lawbreaking is nothing more noble than the standard form of government "blackmail" that has "justified" the whole panoply of Bush abuses: "Allow us to do whatever we want or the country gets it." Her whole post is highly worth reading.